당초 신고에 대한 경정청구 절차에서 증액경정사유의 위법을 주장할 수 있는지 - 대법원 2024. 6. 27. 선고 2021두39997 판결을 중심으로

There has been a lot of discussion about the issues related to the case of additional taxes through corrective disposition (or ‘re-assessment’) after the taxpayer’s the original tax return, and in particular, there has not yet been an explicit precedent on whether the re-assessment can be contested in the claim of refund procedure. The Supreme Court recently rendered a decision (‘2021DU39997 Decision’) on the above issue for the first time. According to 2021DU39997 Decision, even if the appeal period is expired, the reason for re-assessment can also be asserted in the procedure for requesting correction of the original return, but the cancellation cannot be sought for the amount of tax increased under paragraph 1 of Article 45-2 of the Framework Act on National Taxes. This is in symmetry with the previous Supreme Court decision, that is, in the litigation procedure for re-assessment, the reason for over-report can also be asserted after the appeal period, but the cancellation cannot be sought for the amount of tax originally declared in accordance with paragraph 1 of Article 22-3 of the Framework Act on National Taxes. Both decisions cannot be explained by the “Absorption Theory” or the “Co-Existence Theory.” This seems to be due to the fact that the current system is a mixture of various elements, and cannot be explained by any one view. In that case, instead of relying on discussions such as absorption theory and coexistence theory, it should be resolved according to a more general theory on the subject matter of the tax litigation, ‘Total-Amount Theory’. The issue additionally examined is, the scope of the ground for claim that a taxpayer who has lost a previous lawsuit to revoke re-assessment can assert in the procedure for requesting correction of the original return. There is no explicit precedent for the issue yet, and it seems that there is a possibility of future problems, so this article examines them together.